Non-Guidelines Sentences Based On Fast-Track Disparity Still Possible In The Second Circuit?

Liriano-Blanco pled guilty to illegal re-entry charges. The district court declined to impose a non-Guidelines sentence because it believed that it could not do so based on fast-track disparity. But the district court also believed that Liriano-Blanco's sentence could be appealed, actually encouraged appeal so that the fast-track disparity question could be decided by the Second Circuit, and indicated that it would impose a different sentence if the Second Circuit ruled that a non-Guidelines sentence could, in fact, be based on fast-track disparity. The only problem was that Liriano-Blanco signed a plea agreement containing an appeal waiver provision, and no one corrected the district court's misunderstanding at sentencing. The Second Circuit remanded to correct this error.

What's interesting about Liriano-Blanco, however, is what the Second Circuit says about fast-track disparity. We know that the Second Circuit found in United States v. Meija (discussed here) that "a district court's refusal to adjust a sentence to compensate for the absence of a fast-track program does not make that sentence unreasonable." But the Second Circuit acknowledged in Liriano-Blanco that it has never decided the question of "whether the district court has the authority to impose a non-Guidelines sentence in response to the fast-track sentencing disparity if it deems such a reduced sentence to be warranted."

The door is therefore still open in the Second Circuit on fast-track disparity. And, in light of Rita, Kimbrough and Gall, it seems likely that the Second Circuit would ultimately find (when presented with the question) that a district court is authorized to impose a non-Guidelines sentence based on fast-track disparity, and that such a sentence would be reasonable.